Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the 15th Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal with regard to certain amendments of Article 6(2) in that Convention
Date: 2022-02-24
Institutions: Directorate-General for Environment, European Commission
Subjects: exchange of information, export of waste, hazardous waste, international convention, revision of an agreement, transport of dangerous goods, waste disposal

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   EUROPEAN COMMISSION  Brussels, 24.2.2022  COM(2022) 67 final 2022/0046 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the 15th Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal with regard to certain amendments of Article 6(2) in that Convention  
 
EXPLANATORY MEMORANDUM 

SUBJECT MATTER OF THE PROPOSAL 

1. 
This proposal concerns a decision establishing the Union’s position at the 15th meeting of the 
Conference  of  the  Parties  to  the  Basel  Convention,  with  respect  to  a  proposal  to  change 
Article 6 of this Convention. The meeting is scheduled to take place in June 2022.  

2. 

2.1. 

CONTEXT OF THE PROPOSAL 

The  Basel  Convention  on  the  Control  of  Transboundary  Movements  of  Hazardous 
Wastes and their Disposal 

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and 
their  Disposal  (‘the  Convention’)  was  adopted  on  22  March  1989  and  entered  into  force  in 
1992. The European Union as well as its Member States are Parties to the Convention1. The 
Convention has 188 Parties. 

The Convention's cornerstone is a control system for the export, import and transit of certain 
waste,  through  the  procedure  of  “prior  informed  consent”.  Exports  of  waste  subject  to  the 
Convention shall be notified in advance  to the competent authorities of the States of import 
and transit. The notifications shall be made in writing and shall contain the declarations and 
information specified in Annex V A to the Convention. A waste export may only proceed if 
and when all States concerned have given their written consent (Article 6 of the Convention). 

The Convention's control system applies to hazardous waste defined in Article 1 and listed in 
Annex VIII to the Convention, as well as to waste listed in Annex II, which contains waste 
collected  from  households,  residues  arising  from  the  incineration  of  household  waste  and 
certain plastic waste. The Convention also lists waste entries in Annex IX which do not fall 
within  its  scope  and  control  system  unless  such  waste  contains  a  material  belonging  to  a 
category in Annex I to an extent causing it to exhibit a hazardous characteristic in Annex III. 

2.2. 

The Conference of the Parties 

The Conference of the Parties to the Basel Convention is the principal decision-making body 
of the Convention. It has powers to amend the Annexes to the Convention and it meets every 
two years.  

The  fifteenth  meeting  of  the  Conference  of  the  Parties  to  the  Basel  Convention  (CoP15)  is 
being held in two segments: a first online segment took place from 26 to 30 July 2021 and the 
meeting will be resumed during a face-to-face segment in Geneva, from 6 to 17 June 2022. 

The proposed amendment to the Convention  

2.3. 
The  Russian  Federation  tabled  a  proposal  for  consideration  at  the  15th  meeting  of  the 
Conference of the Parties, designed to amend the first sentence of paragraph 2 of Article 6 of 
the Convention (‘the envisaged act’)2. 

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Council  Decision  93/98/EEC  concerning  the  conclusion,  on  behalf  of  the  Community,  of  the  Basel 
Convention  of  22  March  1989  on  the  control  of  transboundary  movements  of  hazardous  wastes  and 
their disposal, OJ L 39, 16.2.1993, p. 1. 
The 
on 
is 
http://www.basel.int/TheConvention/Communications/tabid/1596/Default.aspx  

the  Basel  Convention, 

the  website 

available 

proposal 

see 

of 

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The  first  sentence  of  Article  6(2)  of  the  Convention  reads  as  follows:  “The  State  of  import 
shall  respond  to  the  notifier  in  writing,  consenting  to  the  movement  with  or  without 
conditions, denying permission for the movement, or requesting additional information”. 

This envisaged act proposes to change this sentence through the addition of a time limit of 30 
days  within  which  a  country  of  import  should  respond  to  the  notifier  (to  consent  to  the 
planned shipment, deny its permission to this shipment, or to request additional information). 
In addition, the proposal consists in deleting the “,” between “conditions” and “denying”, to 
replace the comma with “or”.  

The Convention is implemented in the Union through Regulation (EC) No 1013/2006 of the 
European Parliament and of the Council of 14 June 2006 on shipments of waste3 (“the WSR” 
hereafter). Any modifications to the Convention would come into effect in the EU after they 
have been implemented through amendments of this Regulation.  

The  current  rules  applying  to  the  Union  and  its  Member  States  already  foresee  a  30  days 
deadline for the importing country to respond to the notifier (see Article 8 of the WSR). This 
also applies to other OECD countries, as per the OECD Decision4.  

For the Union, the only practical consequence of the changes linked to the Russian Federation 
proposal  would  relate  to  the  procedure  for  the  export  of  notified  waste  to  non-OECD 
countries.  As  export  of  Annex  VIII  and  Annex  II  waste  to  non-OECD  countries  is  banned 
under the WSR, the change triggered by the Russian proposal would only relate to “unlisted 
waste”  (i.e.  with  the  Russian  proposal,  non-OECD  countries  importing  unlisted  waste  from 
the EU would have to respond to the notifier within 30 days), which, under Article 3(1)(b)(iii) 
and  (iv)  of  the  WSR,  are  subject  to  the  procedure  of  “prior  informed  consent”.  The 
amendment  proposed  by  the  Russian  Federation  would  mean  that,  for  these  cases,  the 
importing country would have to respond within 30 days to the notifier of a shipment from the 
Union destined to a non-OECD country.  

The  procedure  for  amending  the  Convention  is  governed  by  Article  17  of  the  Convention. 
Any  such  amendment  must  be  adopted  at  a  meeting  of  the  Conference  of  the  Parties.  An 
amendment  becomes  binding  on  those  Parties  that  deposit  their  instruments  of  ratification, 
approval,  formal  confirmation  or  acceptance  in  accordance  with  Article  17(5)  of  the 
Convention,  which  provides:  “Instruments  of  ratification,  approval,  formal  confirmation  or 
acceptance  of  amendments  shall  be  deposited  with  the  Depositary.  Amendments  adopted  in 
accordance  with  paragraphs  3  or  4  above  shall  enter  into  force  between  Parties  having 
accepted them on the ninetieth day after the receipt by the Depositary of their instrument of 
ratification,  approval,  formal  confirmation  or  acceptance  by  at  least  three-fourths  of  the 
Parties who accepted them or by at least two thirds of the Parties to the protocol concerned 
who accepted them, except as may otherwise be provided in such protocol. The amendments 
shall  enter  into  force  for  any  other  Party  on  the  ninetieth  day  after  that  Party  deposits  its 
instrument of ratification, approval, formal confirmation or acceptance of the amendments”. 
There  is  therefore  a  need  for  a  ratification,  approval,  formal  confirmation  or  acceptance  by 
three  quarters  of  the  Parties  to  the  Convention  (so  141  Parties)  for  any  amendment  of  the 
Convention to enter into force. 

So far, the body of the Convention has been amended once, through the addition of an Article 
4A  and  of  a  subsequent  addition  of  an  Annex  VII  (“the  Basel  Ban  amendment”)  to  the 

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OJ L 190, 12.7.2006, p. 1. 
Decision  on  the  Control  of  Transboundary  Movements  of  Wastes  Destined  for  Recovery  Operations, 
https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0266  

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Convention. This amendment was agreed by the Conference of the Parties at its third meeting 
in 1995 and it entered into force in 2019, for those Parties that have ratified it.  

3. 

(1) 

(2) 

(3) 

(4) 

(5) 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The  Union  should  not  support  the  amendment  of  paragraph  2  of  Article  6  of  the 
Convention as proposed by the Russian Federation.  

The  first  part  of  the  amendment  (30  days  time  limit  for  the  importing  country  to 
respond  to  the  notifier)  would  not  bring  any  major  change  for  the  Union  and  its 
Member States, as the time limit of 30 days for importing countries to respond to the 
notifier  contained  in  the  proposed  amendment  already  applies  to  the  majority  of 
shipments  notified  by  the  EU  and  its  Member  States  under  Union  law  (with  the 
exception  of  exports  of  unlisted  waste  to  non-OECD  countries).  Neither  would  it 
change obligations for the EU/and its Member States receiving notifications,  as the 
time limit of 30 days to respond already applies under Union law.  

The  second  part  of  the  amendment  (replacing  a  comma  with  “or”)  does  not  seem 
necessary and would create legal uncertainty. The current formulation is sufficiently 
clear that the importing country can react in three different manners when responding 
to  the  notifier  (consenting  to  the  movement,  denying  the  permission  to  this 
movement,  or  requesting  additional  information).  There  is  therefore  no  need  to 
amend this sentence.  

The  process  relating  to  amending  the  Convention  is  very  burdensome  and  time 
consuming,  especially  as  it  requires  each  Party  to  proceed  with  its  internal 
ratification process and a threshold of three quarters of all Parties to ratify if before 
the  amendment  enters  into  force.  This  amendment  might  also  in  the  end  have  a 
limited  impact,  as  amendments  are  only  binding  on  those  who  have  ratified  them. 
The proposed amendment therefore would not address  improving the effectiveness 
of the Convention in an efficient way as it would launch a lengthy and heavy process 
within the Convention and for its Parties.  

While not supporting the proposed amendments, the Union should stress that Parties 
should  promote  a  better  functioning  of  the  notification  procedure,  within  the 
framework of the  Basel  Convention.  This  could  include the  establishment of other 
time  limits  for  responses  to  notifiers,  notably  for  transit  countries,  as  well  as 
encouraging  the  use  of  electronic  data  interchange  systems  or  incorporating  the 
concept  of  “pre-consented  facilities”,  which  stems  from  the  OECD  Decision  on 
transboundary movements of waste, into the Basel Convention framework. There are 
a number of processes ongoing in the Convention already on these issues, which are 
useful but have so far delivered only limited results. The Union should underline the 
importance  of  these  issues  and  explore  if  they  could  be  addressed  at  as  part  of 
existing or new initiatives, which would not imply a change to the Convention. The 
Union should show openness towards such possible initiatives.   

(6) 

Finally, it should be noted that the adoption of the proposed amendment, while not 
having clear added-value, would not prejudice the Union’s interests either.  

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

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4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’5. 

4.1.2.  Application to the present case 

The Conference of the Parties to the Basel Convention is a body set up by the Convention. 

The act which the Conference of the Parties is called upon to adopt constitutes an act having 
legal  effects.  The  envisaged  act  will  be  binding  under  international  law  in  accordance  with 
Article  18  of  the  Convention.  It  is  capable  of  influencing  the  content  of  EU  legislation, 
namely Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 
June 2006 on shipments of waste. This Regulation implements the Convention by, inter alia, 
laying down the procedures for exports from and imports to the Union as well as shipments 
between Member States.  

The  envisaged  act  does  not  supplement  or  amend  the  institutional  framework  of  the 
Agreement. 

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged act in respect of which a position is taken on the 
Union’s behalf.  If the envisaged act  pursues two aims or has two components and if one of 
those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The  main  objective  and  content  of  the  envisaged  act  relate  to  the  protection  of  the 
environment. 

Therefore, the substantive legal basis of the proposed decision is Article 192(1) TFEU. 

4.3. 

Conclusion 

The legal basis of the proposed decision should be Article 192(1) TFEU, in conjunction with 
Article 218(9) TFEU.  

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Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

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2022/0046 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union at the 15th Conference of 
the Parties to the Basel Convention on the Control of Transboundary Movements of 
Hazardous Wastes and their Disposal with regard to certain amendments of Article 6(2) 
in that Convention 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 192(1), in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

The  Basel  Convention  on  the  Control  of  Transboundary  Movements  of  Hazardous 
Wastes  and  their  Disposal  (‘the  Convention’)  entered  into  force  in  1992  and  was 
approved by the Union by Council Decision 93/98/EEC concerning the conclusion, on 
behalf of the Community, of the Basel Convention of 22 March 1989 on the control of 
transboundary movements of hazardous wastes and their disposal6.  

Pursuant  to  Article  15(5)(b)  of  the  Convention,  the  Conference  of  the  Parties  shall 
consider and adopt, as required, amendments to the Convention. 
The Conference of the Parties, during its 15th meeting in June 2022, is to consider the 
adoption of amendments of Article 6(2) of the Convention submitted by  the Russian 
Federation.  That  proposal  aims  to  establish  a  30  days  time  limit  for  an  importing 
country to respond to the notifier of a shipment of waste and to include another change 
presented as editorial.  

It  is  necessary  to  establish  the  position  to  be  taken  on  the  Union’s  behalf  at  the 
Conference of the Parties on this proposal, as, being an amendment to the text of the 
Convention,  it has  legal  effects.  If adopted by the Conference of the Parties, this  act 
would  be  binding  on  the  Union  and  impact  the  content  of  Union  law,  namely 
Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 
June 2006 on shipments of waste7. 

The  Union  should  not  support  the  above  amendments  of  the  Convention  since  this 
would  require  a  long  and  heavy  process  to  enter  into  force  and  it  seems 
disproportionate  to  launch  such  process  for  an  amendment,  the  objectives  of  which 
could  be  achieved  by  other  means.  The  Union  should  rather  be  open  to  initiatives 
designed to improve the functioning of the procedure of “prior informed consent”, on 
the conditions  that they  have a broader scope than the proposal  submitted to  CoP15, 
are in line with broad Union policies and objectives and do not require an amendment 

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OJ L 39, 16.2.1993, p. 1. 
OJ L 190, 12.7.2006, p. 1. 

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to  the  Convention.  It  should  be  noted  that  the  adoption  of  the  proposed amendment, 
while not having clear added-value, would not prejudice the Union’s interests either. 

HAS ADOPTED THIS DECISION: 

Article 1 

1. 

2. 

The position to be taken on the Union’s behalf at the 15th meeting of the Conference 
of  the  Parties  to  the  Basel  Convention  shall  be  that  it  will  not  support  the 
amendments  to  paragraph  2  of  Article  6  of  the  Convention,  as  submitted  by  the 
Russian Federation.  

Should  other  proposals  to  improve  the  functioning  of  the  procedure  of  “prior 
informed consent” be submitted at the 15th meeting of the Conference of the Parties 
to  the  Basel  Convention,  the  Union  shall  support  such  proposals  subject  to  the 
following conditions :  

(a) 

(b) 

(c) 

they are designed to improve the functioning of that procedure, by addressing 
the  delays  and  problems  experienced  by  States  of  export,  transit  or  import  to 
handle notifications and supporting the digitalisation of the procedure of “prior 
informed consent”, so that waste can be shipped across borders without undue 
delay, when the shipments in question are compliant with the provisions of the 
Convention, without necessitating a change to the Convention; 

they contribute to the environmentally sound management of waste and to the 
transition towards a global circular economy; and 

they support the proper  implementation  of the control mechanisms laid  down 
in the Convention and contribute to legal clarity in that regard. 

Article 2  

Refinement  of  the  position  referred  to  in  Article  1  may  be  agreed  to,  in  the  light  of 
developments at the 15th meeting of the Conference of the Parties, by representatives of the 
Union,  in  consultation  with  the  Member  States,  during  on-the-spot  coordination  meetings, 
without a further decision of the Council.  

This Decision is addressed to the Commission.  

Done at Brussels, 

Article 3 

For the Council 
The President 

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